COMMONWEALTH OF MASSACHUSETTS.

SUPREME JUDICIAL COURT.

S,J.C. No. 09910

HAMPDEN COUNTY

COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee.

V.

JOEL RODRIGUEZ, Defendant-Appellant.

ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT.

Brief of Amicus Curiae.

DAVID M. SEGEL BBONo. 635136

154 Stuart Street BOSTON, MA 02 1 16

NEW ENGLAND SCHOOL OF LAW

(6 17) 422-7270

FOR AMICUS CURIAE:

101 Tremont Street, Suite 600 Boston, MA 02 1 OX

SUFFOLK LAWYERS FOR JUSTICE, INC.

QUESTION PRESENTED

Should the admission of an electronically intercepted conversation,

between an informant and a defendant occurring wholly within a private home,

secretly recorded without a warrant, continue to violate Article 14 of the

Declaration of Rights? See Commonwealth v. Blood, 400 Mass. 6 1 (1 987).

Table of Contents.. ......................................................................... v

Table of Authorities.. .................................................................. ..vi1

Statement of the Facts .................................................................... ix

Statement of the Case ..................................................................... ix

Statement of Amicus Interest ............................................................ ix

ARGUMENT ......................................................................................................... 1

I. THE COMMONWEALTH EVISCERATE ANY MEANINGFUL LIMITATION ON SECRET ELECTRONIC SURVEILLANCE BY THE EXECUTIVE LN PRIVATE HOMES. ................................................................................................ 1

11. THE UNITED STATES SUPREME COURT’S ANALYSIS OF THE CONSTITUTIONAL IMPLICATIONS OF AN INFORMANT’S SECRET, UNAUTHORIZED ELECTRONIC INTERCEPTION OF CONVERSATIONS IN A HOME IS EMARKABLY BRIEF, AND HAS BEEN REJECTED BY HALF THE2 STATE SUPREME COURTS THAT HAVE CONSIDERED THE QUESTION UNDER STATE CONSTITUTIONS. ............................................... 2

A, The United States Supreme Court’s treatment of warrantless secret electronic surveillance is summary and non-dispositive. ................................... .2

B. Despite the summary statement by the United States Supreme Court that the Fourth Amendment provides no protection in this context, half the state

..

THE OPINION OF THE APPEALS COURT AND THE ARGUMENT OF

supreme courts considering the question have rejected the federal view. ........... 4 111. PEOPLE OVERWHELMINGLY EXPECT FACE-TO-FACE CONVERSATIONS IN PRIVATE HOMES WILL BE FREE FROM SECRET, UNAUTHORIZED ELECTRONIC INTERCEPTION, AND THIS EXPECTATION IS EMINENTLY REASONABLE BASED ON HISTORY, LAW AND COMMON SENSE. ........................................................................... 10

A. This Court has long accorded the highest expectation of privacy to homes, regardless of what is done in them. ................................................................... 10 E. None of the three cases cited by the Court of Appeals, nor the United States Supreme Court case cited by the Commonwealth, address secret, unauthorized electronic surveillance in a private home. ................................... 12

C. People overwhelmingly expect face-to-face conversations will be free from secret electronic interception, ................................................................... 14

D. Combining technology, surreptitiousness and unfettered government discretion poses a grave risk to thoughtful, independent decision-making. ...... 15

CONCLUSION ........................................................................... 19

CERTIFICATE OF SERVlCE ........................................................ 20

Table of Authorities

Cases

Alamada v . State. 994 P.2d 299 (Wyo . 1999) ......................................................... 7

Commonwealth v . Balicki, 436 Mass . 1 (2002) ..................................................... 10

Commonwealth v . Blinn, 399 Mass . 126 (1987) .................................................... 11

Commonwealth v . Blood, 400 Mass 61 (1987) ........................................ 2, 7, 12, 17

Commomvealth v . Brion, 539 Pa . 256, 652 A.2d 287 (Pa . 1994) ....................... 9, 10

Commonwealth v . Collado, 42 Mass.App.Ct. 464 (1997), @d on other grounds, 426 Mass . 675 (1998) .................................................................................. 12, 13

Commonwealth v . Cote, 407 Mass . 827 (1 990) ..................................................... 15

Commonwealth v . Cundrzfi 382 Mass . 137 (1980) ................................................. 2

Commonwealth v . Douglas, 354 Mass . 2 12 (1 968) ............................................... 15

Commowealth v . Eason, 427 Mass . 595 (1998) .................................................. 11

Commonwealth v . Feyenord, 445 Mass . 72 (2005) ............................................... 11

Commonwealth Y . HaIL. 366 Mass . 790 (1 975) ..................................................... 11

. Commomvealth v . Hyde, 434 Mass . 594 (2001) .............................................. 16, 17

Commonwealth v . Jiminez, 438 Mass . 2 13 (2002) ................................................ 11

Commonwealth v . Macias, 429 Mass . 698 (1 999) ................................................ 11

Commonwealth v . Midi, 46 Mass.App.Ct. 59 1 (1 999) .......................................... 12

Commonwealth v . Netto, 438 Mass . 686 (2003) .............................................. 12, 13

Commonwealth v . Panetti, 406 Mass . 230 (1 989) ................................................. 11

Commomvealth v . Podgurski, 386 Mass . 385 (1 982) ............................................ 10

Commonwealth v . Price, 408 Mass . 668 (1990) .............................................. 12, 13

Commonwealth v . Thorpe, 384 Mass . 271 (1981) ................................................. 16

Katz v . Unitedstates, 389 U.S. 347 (1967) ....................................................... 3, 10

Kyllo v . UnitedStates, 533 U.S. 27 (2001) ............................................................ 10

Lee v . State, 489 SoZd 1382 (Miss . 1986) .............................................................. 7

Lopez v . United States, 373 U S . 427 (1 963) ........................................................... 3

Minnesota v . Carter, 525 U.S. 83 (1 998) ........................................................ 13, 14

@stead v . Shed, 13 Mass . 520 (1 8 16) .................................................................. 10

People v . Beavers, 393 Mich . 554, 227 N.W.2d 511 (1975) ................................... 6

People v . Collins. 438 Mich . 8. 475 N.W.2d 684 (1991) ........................................ 6

Snellgrove v . State, 569 N.E.2d 337 (Ind.1991) ...................................................... 8

State v . Azzi, No . 558, 1983 WL 6726 (Ohio Ct.App. Sept . 28, 1983) (not reported) ............................................................................................................... 8

State v . Blow, 157 Vt . 513, 602 A.2d 552 (1991) .................................................... 4 State v . Bonh, 92 Nev . 307, 550 P.2d 409 (1976) .................................................. 8 State v . Brown, 232 Mont . 1, 755 P.2d 1364 (1988) ............................................... 5

State v . Fleetwood, 331 Or . 511, 16 P.3d 503 (2000) ............................................. 9

State v . Germ, 173 Vt . 350, 795 A.2d 1219 (2002) ............................................... 6

State v . Glass, 583 P.2d 872 (1978) ........................................................................ 9

State v . Hume, 512 So.2d 185 (1987) ...................................................................... 7

State v . Mullens, - S.E.2d I 2006 WL 4099850 (February 28, 2007) .... 5 , 6 , 7 State v . RouaFybush, 235 Kan . 834, 686 P.2d 100 (1984) ........................................ 8

State v. Sarmiento, 397 So.2d 643 (1981) ............................................................... 7

State v . Smith, 72 Wis.2d 71 1, 242 N.W.2d 184 (Wis . 1976) .................................. 8 State v . Wright, 74 Wash.2d 355, 444 P.2d 676 (Wash.1968) ................................ 8 United States v . Caceres, 440 U.S. 74 1, 744 (1 979) ............................................... 3

3, 476 United States v . White, 40 1 U.S. 745 (1 97 1) ................................. : .................

AK Const., Art . I, sec . 22 ........................................................................................ 9

AK . Const., Art . I, sec . 14 ....................................................................................... 9

ALA . STAT . ggl3A-1 1-30(1) .................................................................................... 5

Statutes

Ala . Stat . 13A-1 1-36(a)(l) (2005) ........................................................................... 5

Fla Const., Art I, sec 12 7 KY.REV.STAT. g526.010 .......................................................................................... 5

MASS . GEN . LAW ch . 272, §99 ..................................................................... 2, 16, 17

. . . ........................................................................................

MONT.CODE §45-8-213(l)(c)(I) & (2) (2005) ......................................................... 5

Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. $25 10, et seq ............. 5

Articles

Thomas K . Clancy, Coping With Technological Change: KyIlo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights, 72 MKSS . L . J . 525 (2002) ........................................................................................ 16

STATEMENT OF THE FACTS AND STATEMENT OF THE CASE

Amicus relies on the Statement of Facts and the Statement of the Case

submitted by the Defendant-Appellant.

STATEMENT OF AMICUS INTEREST

Suffolk Lawyers for Justice, Inc. (“SLY’) was incorporated on March 3 1,

2000 as a Massachusetts non-profit corporation for the purpose of administering

the delivery of criminal defense services to indigent persons accused of crimes in

Suffolk County, Massachusetts. SLJ manages over 300 private attorneys who

handle approximately ninety percent of the indigent criminal defense cases in 1 1

Boston area courts, including the Superior Court and the Juvenile Court. SLJ is

under contract to manage this program with the Committee for Public Counsel

Services, the state agency that oversees the assignment of all indigent criminal

defense services in Massachusetts.

ARGUMENT

I. THE OPINION OF THE APPEALS COURT AND THE ARGUMENT OF THE COMMONWEALTH EVISCERATE ANY MEANINGFUL LIMITATION ON SECRET ELECTRONlC SURVEILLANCE BY THE EXECUTIVE IN PRIVATE HOMES.

The Massachusetts Declaration of Rights, according to the Appeals Court

and the Commonwealth, provides no place, including one's own home, that a

person can expect to speak freely, confident that his or her words are not being

electronically transmitted to the government without judicial authorization. If no

court need approve an electronic writ of assistance for the most intimate

conversations in a private home whenever the Commonwealth can find someone

to record them, why must any court approve - or even know of - secret

photographing or videotaping inside a home? Commonwealth v. Balicki, 436

Mass. 1, 12 (2002).

Unless this Court can clearly distinguish and categorize the societal value

of the variety of activities within a home based on the closeness of the

participants' relationship, as the Court of Appeals purports to do, no one in the

Commonwealth can expect that anyone with whom they speak in a home is not

secretly recording and transmitting their conversations to the government by

decision of a single police officer. This officer, under the Court of Appeals

decision, can decide that someone whose conversation he wishes for any reason to

intercept, someone who may be a neighbor, friend, acquaintance, colleague or

distant relative of a cooperating individual, is not a "close friend" or a "close

1

business associate,” so does not deserve the protection of prior judicial

authorization before face-to-face interactions in their home are secretly

monitored. This is hardly the discretion the legislature concluded was appropriate

nearly forty years ago when it noted “[tlhe use of [modern electronic surveillance]

devices by law enforcement officers must be conducted under strict judicial

supervision,” MASS. GEN. LAW Ch. 272, §99A (Preamble) (cited in

Commonwealth v. Blood, 400 Mass. 6 1 , 75 (1 987)), and it would be repugnant to

those who decried “a power that places the liberty of every man in the hands of

every petty officer.” Cornmomwealth v. Cundrifs, 382 Mass. 137, 144 (1 980)

(citing John Adams’s recounting James Otis’s argument against writs of

assistance).

11. THE UNITED STATES SUPREME COURT’S ANALYSIS OF THE CONSTITUTIONAL IMPLICATIONS OF AN INFORMANT’S SECRET, UNAUTHORIZED ELECTRONIC INTERCEPTION OF CONVERSATIONS IN A HOME IS REMARKABLY BRIEF, AND HAS BEEN REJECTED BY HALF THE STATE SUPREME COURTS THAT H A W CONSIDERED THE QUESTION UNDER STATE CONSTITUTIONS.

A. The United States Supreme Court’s treatment of warrantless secret electronic surveillance is summary and non-dispositive.

The federal constitutional jurisprudence regarding surreptitious electronic

transmission of private conversations rests on a single thirty-five year old

plurality decision, United States v. White, 401 US. 745 (1971). While the United

States Supreme Court has noted “[nleither the Constitution nor any Act of

Congress requires that official approval be secured before conversations are

overheard or recorded by Government agents with the consent of one of the

2

conversants,” United States v. Caceres, 440 U.S. 741, 744 (1 979), its citation for

this proposition is the plurality decision in United States v. White, 401 U S . 745

(1971) and the opinion in Lopez v. Unitedstates, 373 US. 427 (1963).

Caceres and Lopez were cases with no conceivable claim of a subjective

expectation of privacy, as the taxpayer defendants in each knew they were

speaking with IRS agents who secretly transmitted and recorded their audits for

investigators. Moreover, Lopez relied on a theory of Fourth Amendment

protection the Court subsequently rejected in Katz v. United States, 389 U.S. 347

(1967). Lopez’s author, Justice Harlan, noted in his dissent in White that the

underpinnings of Lopez were in doubt. 401 U.S. 745,789, n. 24 (Harlan, J.,

dissenting). The premise that the Fourth Amendment does not limit secret

electronic recording and transmission by consenting government agents depends

entirely upon United States v. White.

In White, a government informant, without judicial authorization, had

secretly transmitted to investigators conversations he had with the defendant in

his home and in the defendant’s home. Four justices agreed that a defendant has

no reasonable expectation of privacy that confidences with a confederate or an

agent posing as one are not being recorded or transmitted, because the

constitution does not prevent the confederate or agent from later documenting or

reporting the confidences. 401 U.S. at 751-53. Justice Black concurred in the

judgment but rejected the proposition, as he had dissenting in Katz, that the

3

Fourth Amendment reached intangibles such as a conversation. See 401 U.S. at

745 (Black, J., concurring in judgment).

Four dissenters held that the expectation of privacy from secret,

unauthorized recording of conversations with only one party’s consent was

reasonable. See, 401 U.S. at 755 (Brennan, J., concurring in judgment) (“[Ilt is my

view that current Fourth Amendment jurisprudence interposes a warrant

requirement not only in cases of third-party electronic monitoring (the situation in

On Lee and in this case) but also in cases of electronic recording by a government

agent of a face-to-face conversation with a criminal suspect, which was the

situation in Lopez.”); 401 U.S. at 740 (Douglas, J., dissenting) (“I would stand by

Berger and Kutz and reaffirm the need for judicial supervision under the Fourth

Amendment of the use of electronic surveillance which, uncontrolled, promises to

lead us into a police state.”) (notes omitted); 401 US. at 795, (Marshall, J.,

dissenting) (“I am convinced that the correct view of the Fourth Amendment in

the area of electronic surveillance is one that brings the safeguards of the warrant

requirement to bear on the investigatory activity involved in this case.”), and 401

U.S. at 790 (Harlan, J., dissenting)(“The Fourth Amendment does, of course,

leave room for the employment of modern technology in criminal law

enforcement, but in the stream of current developments in Fourth Amendment law

I think it must be held that third-party electronic monitoring, subject only to the

self-restraint of law enforcement officials, has no place in our society.”).

B. Despite the summary statement by the United States Supreme Court that the Fourth Amendment provides no protection in

4

this context, half of the state supreme courts considering the question have rejected the federal view.

State supreme courts have split over whether state constitutions provide

any greater protection against surreptitious electronic surveillance by an

informant in a private home. Most recently, in an exhaustive survey the West

Virginia Supreme Court concluded that “half of the courts in other states

addressing the issue have rejected the White decision on state constitutional

grounds, and thus prohibit an informant from entering the home of a suspect while

wearing an electronic surveillance device without a search warrant having been

issued.” State v. Mullens, - S.E.2d 2006 WL 4099850 (February 28, 2007)

(copy attached). The Court distinguished states that lack a statutory system for

providing wiretap warrants from those (like Massachusetts) that have such a

system.

Five states have no statutory scheme such as Title I11 of the Omnibus

Crime Control and Safe Streets Act, 18 U.S.C.A. $25 10, et seq. for regulating

electronic surveillance: Alabama, Kentucky, Michigan, Montana and Vermont. Of

these, three (Alabama, Kentucky and Montana) have criminal eavesdropping

statutes with law enforcement or one party consent exceptions. See ALA. STAT.

§§13A-11-30(1) & 13A-11-36(a)(l) (2005), KY.REV.STAT. 5526.010 (1999),

MONTCODE $45-8-213(l)(c)(I) & (2) (2005). But see State v. Brown, 232 Mont.

1, 1 1,755 P.2d 1364 (1 988) (Hunt, J. dissenting) (arguing Montana constitution’s

right to privacy should bar warrantless secret recordings by informants).

5

Two of these five states have addressed warrantless, surreptitious

recordings in a home. Michigan’s Supreme Court had held its constitution barred

warrantless surreptitious recording in a suspect’s home in People v. Beavers, 393

Mich. 554,227 N.W.2d 5 1 1 (1 975), but overturned this decision in People v.

Collins, 438 Mich. 8,475 N.W.2d 684 (1991) holding (in a case involving secret

recording of phone calls and conversations in a defendant’s car) that there was no

reasonable expectation of privacy from warrantless electronic surveillance by an

informant. The Supreme Court of Vermont, a state with no criminal

eavesdropping statute, has found its constitution bars warrantless surreptitious

electronic surveillance in a home by an informant working with police, State v.

Blow, 157 Vt. 513,602 A.2d 552 (1991) or even by police officers known to the

defendant as such, because “in. the privacy of the home, . . . our ‘sense of

security,’ in Justice Harlan’s words, is highest.” State v. G e r m , 173 Vt. 350, 358,

795 A.2d 1219 (2002) (citing Harlan, J., dissenting in Unitedstates v. White,

supra).

Most states have a statutory scheme permitting limited forms of electronic

surveillance with warrants, some of which (thirty-two) permit law enforcement

recording with one-party consent while the remainder (thirteen) require either

judicial authorization or authorization by the Attorney General. Mullens, supra at

52, n. 24 & 25. The high courts of six of the first group (Florida, Ohio,

Massachusetts, Mississippi, Wisconsin, and Wyoming) and seven of the second

(Alaska, Indiana, Kansas, Nevada, Oregon, Pennsylvania, and Washington) have

6

addressed surreptitious electronic monitoring in a home. Of the states with

statutes permitting limited forms of electronic surveillance by law enforcement

with warrants and one-party consent, the Court in Mullens notes that “the

decisions of the Supreme Courts of Florida and Massachusetts are particularly

instructive.” Mullens, supra at -. The decision of the Massachusetts Supreme

Judicial Court referenced is Commonwealth v. Blood, supra.

The Florida Supreme Court held in State v. Sarmiento, 397 So.2d 643

(1 98 1) that warrantless electronic surveillance of an informant’s conversation in a

defendant’s home violated the defendant’s reasonable expectation of privacy

protected by Art. I, sec 12 of the Florida constitution. Art. I, sec. 12 provides, in

relevant part, “The right of the people to be secure in their persons, houses, papers

and effects against unreasonable searches and seizures, and against the

unreasonable interception of private communications by any means, shall not be

violated.” The Florida constitution was subsequently amended in 1983, requiring

that its prohibition on unreasonable searches and seizures be construed in

conformity with the federal constitution. See State v. Hume, 5 12 So.2d 185, 188

(1 987) (“conformity amendment” effectively ovenuled Sarmiento).

Opposed to these decisions are Lee v. State, 489 So.2d 1382 (Miss. 1986)

(upholding surveillance under state and federal constitutions) and Alarnuda v.

State, 994 P.2d 299 (Wyo. 1999) (upholding surveillance under state constitution

and refusing to interpret Wyoming constitution’s search and seizure provision as

more protective than Fourth Amendment). An unreported decision of an

7

intermediate appellate court in Ohio upheld a challenge to warrantless electronic

surveillance in the home exclusively under the Fourth Amendment, State v. Azzi,

No. 5 5 8 , 1983 WL 6726 (Ohio Ct.App. Sept. 28, 1983) (not reported). The

Wisconsin Supreme Court held in State ex rel. Arnold v. County Court of Rock

County, 51 Wis.2d 434,439, 187 N.W.2d 354 (1971) that the state’s wiretap

statute barred secret, unauthorized surveillance in a home even with one-party

consent, and noted the unsatisfactory status of U.S. Supreme Court jurisprudence

(“[wlhile this case [United States v. White] is not satisfactory because of the

diversity in its opinions, the disagreement on what the court’s prior decisions

meant, and plurality holding, nevertheless, it controls, for the time being at least,

the issue of constitutionality raised in this case”). Accord, State v. Smith, 72

Wis.2d 71 1, 242 N.W.2d 184 (Wis.1976).

The supreme courts of Indiana and Washington have both followed the

federal rule, Snellgrove v. State, 569 N.E.2d 337 (hd . 1991) and State v. Wright,

74 Wash.2d 355,444 P.2d 676 (Wash. 1968), without interpreting their state’s

constitutions, while the supreme courts of Kansas and Nevada have also cited the

federal rule with approval in construing their state’s wiretap statutes, but neither

interpreted their state’s constitutions. See State v. Rou+bush, 235 Kan. 834, 686

P.2d 100 (1984) and State v. Bonds, 92 Nev. 307, 550 P.2d 409 (1976). The

Oregon Supreme Court excluded an electronic recording by an informant made in

a home, but without addressing the state’s constitution because the court found

the recording violated the wiretap statute. State v. Fleetwood, 33 1 Or. 5 11, 16

P.3d 503 (2000).

Of the states with statutes requiring judicial or prosecutorial authorization

for electronic surveillance, two state supreme courts (Alaska and Pennsylvania)

have addressed surreptitious recording in a defendant’s home under their state

constitutions. In 1978, the Alaska Supreme Court held in State v. Glass, 583 P.2d

872 (1 978) that the Alaska constitution’s prohibition on unreasonable searches

and seizures (Art. I, sec. 14) and its right to privacy (Art. I, sec. 22) barred

warrantless electronic interception of a conversation even with a participant’s

consent that is conducted anywhere. The Court rejected arguments that because an

informant could constitutionally breach a confidence they could also

constitutionally make a secret recording of the conversation, and that persons

seeking to engage in illegal activities could not complain that they had a right to

keep these activities private. 583 P.2d at 876-878. The Court did not base its

decision on the unique constitutional position of the home, but rather on the

importance of the right to privacy combined with the lack of supervision from the

absence of a warrant. 5x3 P.2d at 88 1 , n. 35.

In 1994, the Pennsylvania Supreme Court similarly found in

Commonwealth v. Brim, 539 Pa. 256,652 A.2d 287 (Pa. 1994) that Art. I, sec. 8

of the Pennsylvania Constitution barred warrantless electroninc surveillance by an

informant in a defendant’s home because “[ilf nowhere else, an individual must

feel secure in his ability to hold a private conversation within the four walls of his

home. For the right to privacy to mean anything, it must guarantee privacy to an

9

individual in his own home.” 652 A.2d at 289.

111. PEOPLE OVERWHELMINGLY EXPECT FACE-TO-FACE CONVERSATIONS IN PRIVATE HOMES WILL BE FREE FROM SECRET, UNAUTHORIZED ELECTRONIC INTERCEPTION, AND THIS EXPECTATION IS EMINENTLY REASONABLE BASED ON HISTORY, LAW AND COMMON SENSE.

A. This Court has long accorded the highest expectation of privacy to homes, regardless of what is done in them.

Long before the United States Supreme Court set forth the concept of a

“reasonable expectation of privacy,” this Court accorded a high degree of

protection from government intrusion to the home and those legitimately in it,

regardless of their ownership interest or property rights in it. @stead v. Shed, 13

Mass. 520 (1 8 16) (sheriff who unlawfully entered home to serve civil process on

lodger or boarder could be liable in trespass as if he had entered to serve process

on owner, his children or servants). The familiar test for a “search” under Article

14 is whether police actions intrude “into an area where the defendants had a

‘legitimate expectation of privacy in the particular circumstances,”’

Commonwealth v. Podgurski, 386 Mass. 385,387 (1 982), that is, if the defendant

has an expectation of privacy, is this expectation “one which society could

recognize as reasonable.” Id , at 388 (citing Katz v. United States, 389 US. 347,

361 (1967) (Harlan, J., concurring).

“Nowhere are expectations of privacy greater than in the home, and ‘[iln

the home . , . all details are intimate details.”’ Commonwealth v. Balicki, 436

Mass. 1, 12, n. 14 (2002) (citing KyZIo v. Unitedstates, 533 U.S. 27,28 (2001).

This Court has repeatedly distinguished the home as a place deserving special

10

privacy protection regardless of the ownership interests of the claimant.

Commonwealth v. Fqenord, 445 Mass. 72, 83, n. 12 (2005) (explaining

“heightened protection afforded homes in our search and seizure jurisprudence”

would present different question for dog sniff of odors emanating from private

home); Commonwealth v. Eason, 427 Mass. 595, 600 (1998) (distinguishing case

as not involving “undisclosed use of electronic equipment to transmit a

conversation occurring entirely in a private home”); Commonwealth v. Panetti,

406 Mass. 230,234-35 (1989) (apartment dweller had reasonable expectation of

privacy in not being overheard from crawlspace which he. did not control);

Commonwealth v. Hall, 366 Mass. 790 (1 975) (apartment hallway whose access

exclusively controlled by landlord leading only to his unit’s door provided

reasonable expectation of privacy from police eavesdropping). See also

Commonwealth v. Jiminez, 438 Mass. 213,2 16 (2002) (citing Commonwealth v.

Macias, 429 Mass. 698 (1 999) in explaining retention of knock and announce

requirement due to “high degree of privacy that this court has historically held, in

other contexts, can be expected in one’s home”).

While business premises have traditionally had a lower expectation of

privacy due to their greater openness to the public and higher degree of

regulation, homes - even those belonging to acquaintances in which one has been

staying for an undetermined length of time - carry a reasonable expectation of

privacy. Commonwealth v. Blinn, 399 Mass. 126, 128 (1987) (higher expectation

of privacy in one’s home than in one’s business premises); Commonwealth v.

1 1

Midi, 46 Mass.App.Ct. 591, 593 (1 999). Most specifically, of course, this Court

has found a reasonable expectation of privacy from unauthorized, secret

electronic interception of face-to-face conversations in private homes.

Commomvealth v. Blood, 400 Mass. 61,70 (1987) (“in circumstances not

disclosing any speaker’s intent to cast words beyond a narrow compass of known

listeners, we conclude that it is objectively reasonable to expect that

conversational interchange in a private home will not be invaded surreptitiously

by warrantless electronic transmission or recording.”)

B. None of the three cases cited by the Court of Appeals, nor the United States Supreme Court case cited by the Commonwealth, address secret, unauthorized electronic surveillance in a private home.

Against this jurisprudential line of nearly two centuries, the Court of

Appeals sets three decisions: Commonwealth v. Price, 408 Mass. 668 (1 990),

Commonwealth v. Collado, 42 Mass.App.Ct. 464 (1 997), a f d on other grounds,

426 Mass. 675 (1998), and Commonwealth v. Netto, 438 Mass. 686 (2003). None

of these cases involves secret, unauthorized electronic surveillance in a home, the

question at issue here. Moreover, the two cases that involve electronic

surveillance specifically distinguish surveillance of the home.

In Price the police secretly videotaped a defendant’s illicit drug

transactions in a motel room rented by undercover officers who, directed by two

assistant district attorneys, had already obtained a search warrant based on a ten-

page affidavit for the audio portions of the videotapes. 408 Mass. at 670. The

Court found that any expectation of privacy Price had in the conversations in a

12

hotel room rented by a stranger, over which he had no control, selected by the

stranger, for an arm’s length business transaction, was not one society was

prepared to recognize, and specifically distinguished “the strong tradition of

constitutionally based protection of citizens [in the Commonwealth] from

governmental intrusion into their homes . . . [from the absence of a] similar

tradition that protects against recording business conversations in strangers’ motel

and hotel rooms.” Id at 672.

Similarly, in C o h d o the police had obtained a warrant to secretly

videotape conversations of drug transactions in an apartment of an undercover

officer. The Court of Appeals held that the defendant had no reasonable

expectation of privacy in this context of an arm’s length business transaction with

someone of whom he had great suspicion. Id at 679. Netto stands for the

uncontroversial proposition that a defendant has no reasonable expectation of

privacy in a motel room after the rental period has expired and he has abandoned

it. 438 Mass. at 697.

The Commonwealth attempts to bolster this argument with the proposition

that first time visitors to a private home somehow thereby lack a reasonable

expectation of privacy. Comm.’s Brief at18. The United States Supreme Court

has, in fact, held that social guests in a private home, even the first time in a

private home, have a reasonable expectation of privacy therein, despite the

Commonwealth’s suggestion that Minnesota v. Carter, 525 U.S. 83 (1998) holds

otherwise. Comm.’s Brief at 18. While five justices joined in holding that Carter

13

had no reasonable expectation of privacy from being seen in another’s apartment

where he had come to bag and divide cocaine, Justice Kennedy concurred on the

ground that “almost all social guests have a legitimate expectation of privacy, and

hence protection against unreasonable searches, in their host’s home.” 525 US. at

99. (Kennedy, J., concurring). See also, 525 U.S. at 106 (Ginsburg, J., dissenting)

(“[Wlhen a homeowner or lessor personally invites a guest into her home to share

in a common endeavor, whether it be for conversation, to engage in leisure

activities, or for business purposes licit or illicit, that guest should share his host’s

shelter against unreasonable searches and seizures”) and 525 U S . at 103 (Breyer,

J., concurring in judgment) (“I agree with Justice Ginsburg that respondents can

claim the Fourth Amendment’s protection.”).

C. People overwhelmingly expect face-to-face conversations will be free from secret electronic interception.

Speaking frankly to someone while observing their facial reactions is how

we choose to convey the most sensitive, consequential information, whether to a

family member in crisis, a friend learning tragedy, or an employee facing

dismissal. Despite the proliferation of electronic communication, people still

highly value face-to-face interaction. A 2001 survey by the Social Research

Laboratory at Northern Arizona University of 502 Arizona residents over age

eighteen found that 58% of respondents strongly agreed with the statement “Face-

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to-face interactions are more satisfying than electronic interactions,” and 25.1 %

agreed with the statement.’

An essential component of this interaction, whether by closing the door or

lowering one’s voice, is knowing that it is private, and empirical data strongly

suggest most Americans find unauthorized visual or aural surveillance an invasion

of privacy. A Harris Interactive national survey in 200 1 , 2003 and 2004 assessing

the importance of different aspects of privacy found SO%, 73% and 79%

respectively of respondents rated “Not having someone watch you or listen to you

without your permission” as “extremely irnp~rtant.”~

D. Combining technology, surreptitiousness and unfettered government discretion poses a grave risk to thoughtful, independent decision-making.

Making difficult decisions well is virtually impossible without the ability

to discuss. If a person has no basis to expect a cellular or cordless telephone call

will be private, she may use a landline telephone. Commonwealth v. Eason, 427

Mass. 595,600 (1 998). If a person has no basis to expect messages taken by a

third party will be private, she may mail a letter. Commonwealth v. Cote, 407

Mass. 827 ( I 990). But extension telephones may be listened in on and letters can

be lost in the mail. Commonwealth v. Douglas, 354 Mass. 212,221 (1968),

Eason, supra. If a person wishes a frank, open, and important discussion with

’ http://cgi.irss.unc.edu/ternpdocs/l I :39:07: I .htm, IRSS Study Number: NNSP-AZ-NA-0 16, Available from the Odum Institute for Research in Social Science, http ://www . irss . unc . edu/odum/j sphome .j sp .

QUARTERLY 375,384 (No. 3, Fall 2006). Samuel J. Best, et al, The Polls - Trena!s: Privacy in the Information Age, 70 PUBLIC OPINION

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someone she trusts, she may speak with them face to face, in a place without

disturbance, intrusion or the risk of being overheard - a secure place - such as a

private home. She risks a breach of trust by the confidant, and in theory the

prospect that the confidante commits a crime by secretly recording the

conversation. Commonwealth v. &de, 434 Mass. 594 (2001) (applying MASS.

GEN. LAW Ch. 272, 599 to arrestee’s secret recording of his arrest to demonstrate

harassment).

While individuals may for idiosyncratic reasons seek to secretly record

each other’s conversations, the much greater danger to open discussion comes

from systemic incentives to secretly record by the government, and this is a

danger to security rather than simply to privacy or property. lnvitees obviously

are extended access to one’s property, and what one voluntarily says to another

person necessarily involves yielding some degree of privacy. The danger that any

such interaction, anytime, may be secretly transmitted to the Executive

undermines the basis of security underlying Article 14. See Thomas K. Clancy,

Coping With Technological Change: Kyllo and the Proper Analytical Structure to

Measure the Scope of Fourth Amendment Rights, 72 MIS. L. J. 525, 538 (2002)

(suggesting that security, meaning right to exclude government from the home,

rather than privacy or property is a more meaningful concept in dealing with

fourth amendment implications of technological intrusion that better accords with

historical basis of Framers’ concerns about writs of assistance). See also,

Commonwealth v. Thorpe, 384 Mass. 27 1,285 (1 98 1) ((‘relevant question is not

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whether criminals must bear the risk of warrantless surveillance, but whether it

should be imposed on all members of society . . . [, i]n answering this question,

we must assess the nature of the particular form of warrantless surveillance and its

likely impact on the individuals’ sense of security that is the concern of art. 14’s

protection against unreasonable searches and seizures”) (citations omitted).

As this Court has recently noted in refusing to find an exception to MASS.

GEN. LAW Ch. 272, 599’s general prohibition on one-party consent recordings,

“[tlhe door once opened would be hard to close, and the result would contravene

the statute’s broad purpose and the Legislature’s clear prohibition of all secret

interceptions and recordings by private citizens.” Commonwealth v. Hyde, 434

Mass. at 603. That a confidant may eventually betray a confidence is a

consequence of human nature, but that they may be induced to offer a false

confidence, through the unfettered authority and discretionary power of law

enforcement, anytime and anywhere, would be the consequence of upholding the

Court of Appeals decision in this case. Two decades ago, in rejecting the

argument that a person “consents” to the risk that they are always being secretly

recorded by anyone with whom they speak, this Court explained that “the consent

exception puts the conversational liberty of every person in the hands of any

officer lucky enough to find a consenting informant. What was intolerable in 1780

remains so today.” Commonwealth v. Blood, 400 Mass. at 7 1-72 (1 987). The

proliferation of recording technology only strengthens this proposition.

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CONCLUSION

For the foregoing reasons, Amicus Suffolk Lawyers for Justice, Inc.

respectfully urges the Court to retain the rule that the admission of an

electronically intercepted conversation, between an informant and a defendant

occurring wholly within a private home, secretly recorded without a warrant,

violates Article 14 of the Declaration of Rights.

Respectfully submitted,

Professor of Law" BBONO. 635136 NEW ENGLAND SCHOOL OF LAW 154 Stuart Street BOSTON, MA 02 1 16 (6 17) 422-7270

3 DATED: June $, 2007

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